K.K. v. Switzerland

The author of the communication, K.K., was born on 11 June 2006 and is a national of Georgia. She filed an application for asylum in Switzerland, but her application was rejected. She is facing deportation to Georgia and claims that her expulsion would constitute a violation by the State party of articles 3, 12,³ 19 (1), 24 (1), 37 (a) and 39 of the Convention. The Optional Protocol entered into force for the State party on 24 July 2017. The author is represented by counsel.

3. The claim under article 12 of the Convention was made by the author in her comments of 15 April 2021 on the State party’s observations. ↩

On 21 January 2020, pursuant to article 6 of the Optional Protocol, the Working Group on Communications, acting on behalf of the Committee, requested the State party to adopt interim measures to suspend the removal of the author to Georgia pending the consideration of the case by the Committee. On 24 January 2020, the State party informed the Committee that the removal had been suspended.

The author’s parents began living together in Tbilisi in December 2004.⁴ When the author was born, her mother suffered from an intervertebral disc problem and later from psychological problems that required medical care. In 2011, after taking out bank loans to finance her medical treatment, the mother left Georgia on her own for Italy, where she worked as a carer for older persons to pay off her debts. From that time onwards, the author lived in Georgia with her father and paternal grandmother. Until May 2017, she communicated with her mother only through an instant messaging and calls platform.

4. The mother reportedly worked as an assistant in a dental clinic, where she was in charge of the accounts. The father reportedly trained in the area of construction and then worked on an occasional basis as a plumber and house painter. ↩

After the author’s mother had left, the father’s situation deteriorated. He began consuming alcohol and drugs and became violent: he insulted his mother and daughter, and destroyed furniture and other objects in the house. After a while, the author’s father became a drug dealer and incurred debts with other criminals. Since he had gone into hiding, the criminals searched the house several times and assaulted the author by pulling her hair.

On two occasions when the author was about 8 years old, drug dealers came to the house to look for her father, who was in hiding. When they had left, the author and her grandmother started looking for him and found him in the barn, standing on a chair with a rope ready to hang himself. They started shouting, and the father went into the house. The author called her mother and, during the conversation, her father started shouting and hitting his mother and demanding the keys to the car because he wanted to use it to kill himself. During the fight, the father broke his mother’s arm. After this incident, the father lost contact with his mother. The author moved to her maternal grandmother’s house in another village but the drug dealers continued looking for her father, including in this new location.

On an unspecified date in 2017, the author joined her mother in Italy. In May 2017, the father joined them. After two months, however, they decided to move to Switzerland because they had noticed that there were many Georgians living in Italy and they feared being discovered by the drug dealers who were looking for the author’s father

On 20 July 2017, the family applied for asylum in Switzerland. The author’s parents were heard on 2 August and 20 November 2017. A psychological assessment of the mother, dated 26 October 2017, showed that she had suffered from adjustment disorder with depression and anxiety and that she exhibited symptoms of post-traumatic stress disorder. A psychological assessment of the author, dated 2 November 2017, showed that she was suffering from acute stress disorder and sleep disorders and that she worried about her mother’s health and had lost her appetite because of the significant changes that she had experienced and her family circumstances.

On 9 February 2018, the State Secretariat for Migration rejected the asylum application filed by the author and her parents since they had not established – at least not plausibly – that there were grounds for believing they would be persecuted within the meaning of the Asylum Act. It denied them refugee status and ordered their removal from Switzerland, ruling that there were no obstacles to removal related to the family members’ health or the author’s well-being.

On 19 March 2018, the author and her parents appealed against the decision of the State Secretariat for Migration, arguing that it should be overturned and requesting that the case be remitted for further examination and a personal hearing of the author. The family provided previously undisclosed information on the father’s persecution. They reported that the father had tried to commit suicide on 19 April 2018 – probably because of the refusal of the asylum application⁵ – and that he had had to be hospitalized. They also produced a medical report, dated 30 April 2018, that had been drawn up by the Children’s and Young People’s Psychiatric Services of Burgdorf following an appointment requested by the author after her father’s suicide attempt. The Service has been responsible for the author’s follow-up care since 9 April 2018. According to the report, the author was clearly suffering from post-traumatic stress disorder with intrusive memories of traumatic events as well as nightmares, nervousness, flashbacks, physical tension, difficulty concentrating and persistent negative emotions.

5. According to a psychological assessment of the father, dated 25 April 2018, which attested to an adjustment disorder with suicidal tendencies. ↩

On 28 May 2018, the Federal Administrative Court dismissed the appeal and upheld the challenged decision. The Court noted, among other things, that the stated grounds for the asylum application did not coincide with the statements made by the persons concerned during their personal hearings. They no longer claimed that they had left Georgia because of their debts but because third parties had threatened them. The lack of credibility of the parents’ statements was in no way dispelled by the documents that they submitted, including the medical report of 30 April 2018. While the psychological assessment of 2 November 2017 stated that, given the circumstances, the author gave the impression of being healthy and very stable, the report of 30 April 2018 stated that she had post-traumatic stress disorder without providing any justification for such a discrepancy in the assessments. After having weighed the evidence in advance, the Court considered that a further personal hearing of the author was not necessary. Finding that the alleged threats from third parties did not constitute a valid ground for asylum, the Court then examined whether the parents’ and author’s return to Georgia was lawful, i.e. whether it violated the commitments undertaken by Switzerland under international law.

In this connection, the Federal Administrative Court examined whether, in the light of the case law of the European Court of Human Rights and the practice of the Committee against Torture, the return would be in compliance with article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). The Court found that, in view of the statements made by the persons concerned and the documents in the case file, there was no evidence that they would face a real risk of being subjected to acts of torture or inhuman or degrading treatment if they were returned to Georgia. Nor was the general human rights situation in Georgia an obstacle to their removal.

Lastly, the Court examined whether the removal was reasonable, which would not be the case if it exposed the persons concerned to a specific danger, for example, if there was a war, a civil war or widespread violence or if they needed medical treatment. In this context, the Court undertook a comprehensive examination of whether the author’s best interests had been a primary consideration, with specific reference to article 3 of the Convention on the Rights of the Child. It assessed the author’s medical situation in the light of the psychiatric reports of 2 November 2017 and 30 April 2018 and used information from different sources, including the World Health Organization, to consider the functioning of the health-care system in Georgia. It stated that the author’s and her parents’ medical problems were not of such severity that it would constitute a medical emergency if they returned to Georgia, where they would be able to receive the necessary treatment. The Court concluded that the author’s removal would not violate any international human rights standards, including article 3 of the European Convention on Human Rights.

On 18 June 2018, the doctors who were caring for the author prepared a statement on the discrepancies between the psychological assessment report prepared in November 2017 and the report prepared in April 2018. Among other things, they stated that if the family returned to Georgia, it would at least be necessary to ensure that a specialist supported the author in order to help her parents create an appropriate developmental space for her since she would be adversely affected by their stress. In a periodic report on the author, dated 25 June 2018, doctors expressed doubt about her parents’ ability to provide her with a safe environment and emotional protection. A psychological assessment of the father, dated 6 July 2018, stated that he was suffering from an adjustment disorder and depression and that he was addicted to psychoactive substances and prone to intentional self-harm.

On 13 July 2018, the family submitted a request for review to the State Secretariat for Migration on the grounds that the author’s well-being would not be ensured in Georgia. They also requested that she be given a personal hearing to discuss the grounds for her asylum and the possible obstacles to her removal as, being 12 years of age, she was unable to explain these points in writing. In a decision issued on 2 August 2018, the State Secretariat rejected the request for review. A psychological assessment of the father, dated 27 August 2018 and updated on 19 December 2018, stated that he was suffering from post-traumatic stress disorder and clinical depression with psychotic symptoms.

On 8 November 2018, the Federal Administrative Court admitted the family’s appeal against the decision of the State Secretariat for Migration and overturned the decision. In support of its ruling, the Court primarily considered the author’s best interests and found that the two new medical reports, dated 18 and 25 June 2018, indicated that her health had clearly deteriorated and that the State Secretariat had failed to take sufficient account of these reports in its analysis. The case was referred back to the State Secretariat for Migration so that it could establish all the relevant facts and make a new assessment, while granting the right to be heard to the parties concerned.

After resuming the investigation of the case, the State Secretariat for Migration asked the author’s doctors to submit a psychological assessment of her. In this assessment, dated 17 December 2018, the doctor explained that they had tried in vain to analyse the prospect of return with the parents as the mere mention of it caused them to feel panic and despair. In the doctors’ view, the panic felt by the parents, coupled with the previous suicide attempts and the psychological disorders, could increase the likelihood that one of them would commit suicide. In the long term, the parents’ psychological disorders could increase the author’s risk of suicide. In the doctors’ view, the emotional bond between the author and her parents was important for her well-being.

In a psychological assessment of the father, dated 12 April 2019 and prepared at the request of the State Secretariat for Migration, doctors stated that he continued to suffer from post-traumatic stress disorder and clinical depression with psychotic symptoms. In a psychological assessment of the author, dated 22 May 2019 and prepared at the request of the State Secretariat, doctors updated the psychological assessment of 17 December 2018 and noted that she was still suffering from adjustment disorder with feelings of distress, emotional impairment, rumination, excessive worry, joylessness, grief, fear, somatization and post-traumatic stress disorder. The doctors also stated in the report that the author may have difficulty distancing herself from her parents’ fears and psychological tensions and that the development of her independence is being inhibited.

On 28 August 2019, the State Secretariat for Migration again denied the request for review, noting that the two most recent medical reports did not change the assessment made by the Federal Administrative Court in its first ruling on the author’s psychological disorders and the possibility of her receiving treatment in Georgia. It is not unusual for individuals to feel under increasing psychological pressure as a removal date approaches. The potential risks associated with this can be managed by carefully preparing them for the return and providing them with appropriate medication. The author’s psychological difficulties are mainly related to her parents’ health complaints. They are linked to the situation within the family, so an improvement in the parents’ health would appear to be the key to alleviating the burden felt by the author.

According to a report dated 9 September 2019, the father was admitted to hospital on 4 September 2019 after trying to kill himself by overdosing on medication. A psychological assessment of the mother, dated 13 September 2019, stated that she was under extreme mental stress. Also in September 2019, the author attempted to commit suicide by overdosing on medication.

On 27 September 2019, the author and her parents filed an appeal with the Federal Administrative Court, producing new medical reports and requesting a hearing for the author. On 25 October 2019, the mother was informed that she was pregnant and that her due date was 18 April 2020. On 20 November 2019, the father left the hospital after his suicide attempt while still suffering from post-traumatic stress disorder, adjustment disorder with depression, and addiction to psychoactive substances. A psychological assessment of the author, dated 21 November 2019, confirmed that she was suffering from suicidal ideation, post-traumatic stress disorder, and sleep disturbance. The doctor advised against her returning to Georgia since an interruption in her treatment or a reduction in its intensity would have harmful consequences for her and could increase the risk of suicide, whereas staying in Switzerland would give her some stability.

On 6 December 2019, the Federal Administrative Court dismissed the appeal, paving the way for the enforcement of the removal. In its ruling, the Court again considered the consequences of the author’s removal from the perspective of her best interests. In so doing, the Court based its consideration on the most recent medical reports, taking into account the diagnoses identifying the heavy psychosocial burden on the author and the possibility that she may have post-traumatic stress disorder. Once again, it gave its views on the general functioning of the health system in Georgia. It held that the author and her parents could receive psychiatric treatment in Georgia and that it should be acknowledged that they could obtain access to the necessary care in their country.⁶ The family members had received medical treatment in Georgia before they left the country, so there was no apparent reason why they should not be offered such treatment in the future. The fact that the treatment available in their country of origin does not meet Swiss standards does not mean that the removal is unreasonable. The Court then noted that the main cause of the psychosocial burden on the author is likely to be her parents’ behaviour (since the cited grounds for asylum had not proven to be credible) and the precarious nature of her stay in Switzerland. Removal from Switzerland would clarify the family’s situation and, after the return to Georgia, the psychological burden on the author would decrease. The Court found that a return to Georgia would be desirable in the circumstances and that remaining in Switzerland was not necessarily in the author’s best interests.⁷ Moreover, the Court expressed its surprise that almost all the medical reports expressly state that the author’s psychological problems are related to the prospect of her having to return to Georgia.

6. The Court noted that the website of the Georgian Mental Health Coalition mentions several organizations that work in the area of psychological rehabilitation, including some that are dedicated to children and their families. In addition, the mental health of children and adolescents is also protected in Georgia, where, since 2006, there has also been an emergency social assistance programme, with free health insurance, for people living below the poverty line. ↩
7. The Court noted that the medical report of 18 June 2018 did not rule out a return to Georgia if the author was cared for by a specialist there. ↩

With regard to the author’s request for a hearing, the Court found that the argument put forward to justify this was not credible as she could have described her story and fears to her therapist, who could have recorded them (assuming that she would trust her therapist, whom she knows, more than strangers at a hearing). The Court then considered that, once the family had returned to Georgia, the parents, especially the mother, should be able to stabilize their situation and resume working. The family circle of the persons concerned – in particular the author’s two grandmothers – would also be likely to have a positive effect on the child’s well-being and the stability of the persons concerned. This view is supported by her legal counsel, who, on 25 April 2019, made comments to the effect that, as a degree of stability had been attained, it was not necessary to place her with family members living in Switzerland or to consider involving the Child and Adult Protection Authority. The Court also noted that, in view of the author’s age and the relatively short duration of her stay in Switzerland, it could not be said that she had lost touch with her social environment in Georgia. A return to Georgia therefore seemed to be in the child’s best interest. Although her suicide attempt was clearly worrying in itself, it could be dealt with and managed by putting in place appropriate support measures as part of the return.

The author alleges that her removal to Georgia would violate articles 3, 19 (1), 24 (1), 37 (a) and 39 of the Convention as she would not have access to adequate treatment for her mental health condition in her country of origin. Furthermore, her removal would be carried out without the State party obtaining individual and sufficient guarantees of access to appropriate psychiatric treatment and child welfare services.

Citing the relevant general principles referred to by the European Court of Human Rights in the case of Savran v. Denmark,⁸ the author claims that there is abundant and consistent medical evidence pointing to a decline in her mental health, at least in the last two years, and that she even made a suicide attempt in September 2019. Since she was a small child, she has been deprived of her mother’s physical presence and has witnessed her father’s decline. Therefore, if the author does not receive appropriate psychiatric treatment in Georgia, she will be at risk of undergoing a serious, rapid and irreversible decline in her health, leading to intense suffering and, possibly, another suicide attempt. Thus, articles 3, 19 (1), 24 (1), 37 (a) and 39 of the Convention are applicable to her situation.

8. European Court of Human Rights, Savran v. Denmark, Application No. 57467/15, 1 October 2019, paras. 44–49. The case was referred to the Grand Chamber, which rendered its judgment on 7 December 2021. ↩

According to the author, recent and credible information on her country of origin indicates that she would not have access to adequate treatment in Georgia. A report issued by the Curatio International Foundation highlights a number of shortcomings in the psychiatric treatment system in Georgia,⁹ including scarce financial and human resources, inadequate resource distribution, a limited information base, management and supervisory gaps, and insufficient interaction between different State programmes. The focus on inpatient treatment significantly hinders the development of outpatient services. In addition, there is a shortage of hospital beds and qualified personnel, costs for patients are high and the quality of treatment is second rate.¹⁰ On the basis of this information, the author concludes that there is a real risk that she will not receive adequate treatment if she is returned to Georgia.

9. Curatio International Foundation, “Mental Health Care in Georgia: Challenges and Possible Solutions”, June 2014. ↩
10. L. Sulaberidze et al., “Barriers to delivering mental health services in Georgia with an economic and financial focus: informing policy and acting on evidence”, 13 February 2018. Available at https://bmchealthservres.biomedcentral.com/articles/10.1186/s12913-018-2912-5. ↩

The author argues that the State party’s authorities have not given sufficient consideration to the question of whether her parents will be able to afford the cost of her treatment. Instead, they have limited themselves to stating that, in Georgia, people who cannot afford to pay for treatment can receive these services free of charge. The author points out that her mother had to take out a bank loan to pay for treatment for her back problems. Also, as her parents are ill themselves, it is not clear that they would be able to work.

The author argues that the State party’s authorities have not given sufficient consideration to the question of whether she could receive the necessary treatment in Georgia, given that, prior to her departure, she lived in a village that probably has no facilities to treat her, while the medical report of 18 June 2018 states that, in the event of her return, she should be supported by a specialist. Medical reports also indicate that her parents have mental health conditions, making them unable to ensure her well-being.

As the author’s father and mother have not lived in Georgia for three and nine years, respectively, a return may force them to make unwanted adjustments, which may trigger new suicide attempts, especially by the father, who has already made at least four such attempts. Moreover, since citizens of Georgia are exempt from having to obtain a Schengen visa, the parents might try to obtain asylum in another European country, which would prolong their uncertain migration situation and probably cause them even more harm.

The author states that her paternal grandmother broke off all relations with the family after her son broke her arm. Her maternal grandmother is ill and must take care of her husband. During their stay abroad, the author and her parents have had no contact with other family members or friends in Georgia. It is therefore unlikely that the author would be able to obtain any support from them.

Lastly, in the absence of guarantees from the Georgian authorities that the author will be supported by child welfare services, it cannot be assumed that she will receive such support. Her mother would probably be opposed to the author’s being taken into care. In conclusion, in the event that the State party’s authorities wish to enforce the removal, they should obtain individual and sufficient assurances from the Georgian authorities that the author will have access to appropriate psychiatric treatment and support from the child protection services. In the absence of such assurances, her removal from Switzerland would constitute a violation of articles 3, 19 (1), 24 (1), 37 (a) and 39 of the Convention.

With respect to the legal nature of article 3 of the Convention, the State party points out in its observations of 21 September 2020 that a distinction must be drawn between the provisions of the Convention that are directly applicable, and whose violation may be alleged, and those that are not.¹¹ Directly applicable provisions are those that are unconditional and sufficiently clear and precise to be applied as such in a given case. Other provisions contain “general programmes” and leave States parties considerable room for manoeuvre. Such provisions are often formulated as a recognition of a particular “right of the child”. However, whether these “rights” can form the basis for a justiciable claim against the authorities is first and foremost a question of national law.

11. The State party submits that in the original version, dated 11 October 2006, of the general guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 44 (1) (b) of the Convention (CRC/C/58), the Committee recognized that not all provisions of the Convention are directly applicable. ↩

In this regard, the case law of the Federal Supreme Court has generally been restrictive in allowing the direct applicability of the Convention. While the Court has recognized the direct applicability of article 37 (a) of the Convention, it has not done so for articles 3 (1), 19 (1), 24 (1) and 39. These provisions relate to various economic, social and cultural rights that, as the Federal Court has repeatedly pointed out, do not concern individuals but the legislature. However, even if the Committee considers these provisions to be directly applicable, the State party does not believe that any of them, including article 37 (a), have been violated in the present case.

The State party affirms that the communication is inadmissible under article 7 (f) of the Optional Protocol. Although the author briefly mentions five provisions of the Convention, her reasoning does not explain how the various obligations established in each provision have been violated by the State party. Only an overall argument is advanced by the author, even though she is represented by a professional attorney in these proceedings. The reasoning put forward essentially refers to an alleged violation of article 37 (a) of the Convention insofar as the execution of the removal would, according to the author, constitute cruel, inhuman or degrading treatment, particularly in the light of the interpretation given by the European Court of Human Rights to article 3 of the European Convention on Human Rights. However, the State party considers that it is hardly possible to determine, with any degree of accuracy, what the author’s complaints are in relation to articles 3, 19 (1), 24 (1) and 39 of the Convention.

With regard to the alleged violation of article 37 (a) of the Convention, the State party notes that the author essentially intends to challenge the decision of the national authorities to reject the asylum application and order her return, which was taken at the end of proceedings in which the State Secretariat for Migration issued three decisions (two of which related to an application for review) and the Federal Administrative Court carried out a judicial review by issuing three rulings. The author’s situation and state of health were therefore subjected to a thorough examination, in the course of which all her claims were examined by the national authorities. Although the author never expressly referred to article 3 of the European Convention on Human Rights, article 3 of the Convention against Torture, or article 37 of the Convention on the Rights of the Child, the Court carried out a comprehensive examination of the admissibility of a return in the light of these provisions and the principle of non-refoulement.

In view of the above, the communication appears to be insufficiently substantiated in respect of all the claims formulated by the author, since it does not meet the minimum requirements for substantiation set out in the Optional Protocol. Furthermore, the communication appears to be manifestly ill-founded with regard to the alleged violation of article 37 (a) of the Convention.

With regard to the merits, the State party considers that the author has failed to sufficiently substantiate her claim of a violation of articles 19, 24 (1) or 39 of the Convention. With regard to article 3 (1) of the Convention, the State party argues that the Federal Administrative Court weighed up the interests at stake, taking sufficient account of the best interests of the child. It took into account her age, family situation, state of health and the possibility that she could receive medical care in Georgia, as well as the short duration of her stay in Switzerland and the fact that she has not lost all connection with her roots in Georgia, where she still has family members who can support her.

With regard to article 37 (a) of the Convention, the State party notes that the judgment of the European Court of Human Rights in the case of Paposhvili v. Belgium¹² represents the current case law on the applicability of article 3 of the European Convention on Human Rights in relation to the removal of seriously ill foreign nationals and establishes the high threshold of severity that applies. Lowering the threshold of severity required for the application of article 3 of the European Convention would place too great a burden on States to compensate for the disparities between their health-care systems and the treatment available in third countries by providing free and unlimited health care to all foreign nationals who did not have the right to remain in their territory. The State party is of the view that, in order for the removal of a seriously ill child to raise concerns under article 37 (a) of the Convention, a high threshold should also be applied.

12. European Court of Human Rights, Paposhvili v. Belgium, Grand Chamber, Application No. 41738/10, 13 December 2016. ↩

In this case, the Swiss authorities have paid constant attention to the author’s health throughout the asylum proceedings. Numerous medical reports have been requested to assess her psychological disorders. The medical reports produced by the author and her parents have also been duly taken into account by the State Secretariat for Migration and have been assessed on each occasion as part of the decisions taken. The Federal Administrative Court, for its part, has issued several rulings examining in depth all the implications for the author of a return to Georgia with her parents. The Court conducted this review expeditiously on each occasion, paying considerable attention to the child’s welfare and taking into account all the circumstances of the case.

In its first ruling of 28 May 2018, the Federal Administrative Court conducted a detailed examination of the situation from the perspective of the welfare of the child, who was then 11 years old. It considered two psychiatric reports, dated 2 November 2017 and 30 April 2018, took into account the facts and diagnoses set out in these reports, and made an assessment of the author’s needs for ongoing treatment. The medical reports show that it is mainly the very difficult situation within the family unit – in particular the conflict between the author’s father and mother and the former’s suicide attempts – that is adversely affecting the author’s health. The Court then undertook a lengthy analysis of the current state of the health-care system in Georgia and found, on the basis of several sources, including a report issued by the World Health Organization,¹³ that the system was working and had improved significantly. In so doing, the Court noted that post-traumatic stress disorder can be treated in Georgia and that access to the health-care system is also guaranteed for people living below the poverty line thanks to a social welfare programme, introduced in 2006, which includes free health insurance for beneficiaries. The Court also noted that, according to the Georgian Mental Health Coalition, there are several organizations in the country that promote psychosocial rehabilitation, particularly for children and their families.

13. World Health Organization, Regional Office for Europe, “Georgia: Profile of Health and Well-being”, 2017. ↩

In the second ruling of the Federal Administrative Court, dated 8 November 2018 and overturning the decision of the State Secretariat for Migration to deny an application for review of the Secretariat’s initial decision, the Court again based its analysis on the welfare of the child. Taking into account two new medical reports, dated 18 and 25 June 2018, it concluded that the author’s health had significantly deteriorated and invited the State Secretariat for Migration to take this medical evidence into consideration and conduct a new assessment of the situation.

In its third and final ruling, issued on 6 December 2019, the Federal Administrative Court noted that the State Secretariat for Migration had correctly and thoroughly assessed the situation from a medical perspective as it had taken all the medical reports into account in its analysis. The Court once again deliberated on the admissibility and impact of the author’s removal to Georgia from the perspective of the welfare of the child. In so doing, the Court considered several new medical reports on the author’s health that highlighted the disturbances within the family, including the reports of 17 December 2018, 22 May 2019 and 9 September 2019, the last of which noted that the father had made a further suicide attempt and had been hospitalized in a psychiatric facility. The Court took into account the fact that, according to the reports, the author was under a severe psychosocial burden and showed signs of suffering from post-traumatic stress disorder. Noting that the author’s severe psychosocial burden primarily resulted from her parents’ behaviour and the uncertainty surrounding their stay in Switzerland and the date of their return to Georgia, the Court again considered the state of the health-care system in Georgia. It concluded that the author and her parents would be able to receive psychiatric treatment in Georgia and that there was no evidence to suggest that they would not be able to do so.

As is clear from the above, every necessary measure has been taken to analyse the author’s state of health, which is significantly affected by the family’s very troubled situation and the disorders suffered by her parents: both the State Secretariat for Migration and the Federal Administrative Court have examined in detail the very numerous medical reports produced during the proceedings. The steady deterioration in the author’s health, as highlighted by her tragic suicide attempt, is not disputed and has also been taken into account by the State Secretariat for Migration and the Federal Administrative Court. In their decisions, however, the Swiss authorities have broadly explained and demonstrated, on the basis of the medical and social findings set out in the various reports, that the author’s and her parents’ psychological problems were mainly related to the prospect of their having to leave Switzerland. The authorities were of the view that their situation would stabilize once they returned to Georgia, since the uncertainty surrounding their departure, which is a source of great anxiety, would no longer be an issue. The Federal Administrative Court noted, in particular, that the mother could be expected to resume paid employment in Georgia, which could only help to stabilize the family’s situation. In this connection, the State party notes that the author’s mother worked for many years, first in Georgia and then in Italy, and that she does not receive any disability benefits in Switzerland.

Without in any way wishing to underestimate the author’s difficult situation, the State party believes that, as its authorities have consistently found in their decisions, the mental disorders from which she suffers do not pose a real risk of a serious, rapid and irreversible decline in her state of health that would cause her to experience intense suffering or a significant reduction in her life expectancy. Fortunately, her condition is not life threatening. In other words, the state of the author’s health clearly fails to meet the high threshold required for a determination to be made on the availability and accessibility of adequate treatment in the country of removal. The severity of her disorders cannot be compared to those of the applicant Paposhvili, who was suffering from life-threatening chronic lymphocytic leukaemia.

Although the issue of access to appropriate medical treatment is not relevant as the threshold of severity required under article 37 (a) of the Convention has not been met, the State party notes that the author and her parents have failed to provide sufficient evidence that, owing to a lack of means, among other reasons, they would not have access to the psychiatric treatment and follow-up that all three of them will need if they return to Georgia. The fact that the Georgian State does not, according to them, cover the costs of treatment for certain illnesses, such as anxiety disorder or obsessive-compulsive disorder, is irrelevant in this respect. Indeed, the main disorders that, according to medical reports, are affecting the author (severe psychosocial burden and post-traumatic stress disorder) do not belong to categories that appear to be excluded from reimbursement. Furthermore, the fact that the author’s mother claims that she had to pay for her own medical treatment for back trouble in 2006 does not invalidate the finding that medical treatment is now largely free of charge for those in need. In addition to the aforementioned social welfare programme introduced in 2006, a State-funded universal health-care programme was introduced in 2013, improving the public’s access to health care. Medical services not covered by this programme can be funded by a State agency, the Referral Service Commission, in order to supplement the public health-care benefits provided under the universal health-care programme. This allows the authorities to respond in a relatively flexible manner to people’s needs, for example, in cases where the reimbursement provided by the State is not sufficient to cover the costs of a particularly expensive treatment.

As for the family members in Georgia and the support of the local authorities, the State party argues that the author’s two grandmothers are key figures for the author, and both the State Secretariat for Migration and the Federal Administrative Court considered that it would be beneficial for her to renew her relationship with them. Contrary to the claims made by the author, the health difficulties experienced by one grandmother and the attitude of the other, who is said to be estranged from the author’s father, do not preclude all possibility of their providing emotional, face-to-face or even material support. During her first hearing before the State Secretariat for Migration, the author’s mother confirmed that she had kept in touch with her parents and, in particular, with her mother, who was a teacher in the village of Khorkheli.

The Swiss authorities have also taken into account the author’s age and the relatively short duration of her stay in Switzerland, from which it may be concluded that she has not really lost touch with her roots in Georgia. Lastly, the Federal Administrative Court considered that the author’s suicide attempt was to be taken seriously and that appropriate support measures therefore had to be taken to ensure that the return went as smoothly as possible. The State party argues, however, that such measures cannot be expanded to satisfy the author’s request that a specialist support her and help her parents to establish an appropriate framework for her development once they have returned to Georgia. The Swiss authorities can undoubtedly facilitate the practical organization of the return and the establishment of contacts on the ground, but they cannot take the place of the Georgian authorities responsible for health, social welfare and child protection.

The State party acknowledges that the parents’ state of health and the family situation are having an adverse effect on the author’s mental health. It notes that this is no longer disputed by the author. From this perspective, her health will benefit if the atmosphere within the family improves, which the Georgian authorities can help to bring about once the family has returned to the country. In the State party’s view, the allegations that the author’s mother might oppose a possible intervention by the Georgian child protection authorities, if such an intervention proved necessary, are pure speculation and are not based on any concrete evidence. Moreover, it is not at all clear why the mother’s opposition to the child protection authorities would be more likely to be a problem in Georgia than in Switzerland. It should also be noted that the Swiss child protection authorities are fully aware of the family’s situation but, to date, have not considered it necessary to order protective measures for the author, let alone order that she be taken into care. The State party further notes that the author’s and parents’ attorney acknowledged before the Federal Administrative Court that there were no grounds that would justify placing the author with a family or ordering measures to be taken by the child protection authority on her behalf. Lastly, there is no reason to believe that the Georgian child protection authorities would refuse to act and order protective measures for the author if, at some point in the future, they saw a need to do so. The Swiss authorities are therefore not responsible for seeking guarantees in this respect, especially since the availability and accessibility of psychiatric treatment in Georgia have been sufficiently established.

In her comments of 15 April 2021, the author begins by providing up-to-date information on her and her parents’ health. In so doing, she notes that her father had been raped in Georgia and that neither she nor her mother had known anything about this since he had never mentioned it. She then notes that the Committee has already had occasion to reject the State party’s argument on the applicability of certain provisions of the Convention.¹⁴ She also considers her complaints to be admissible because all the articles cited relate to her allegations that her right to the protection of her physical and mental health would be violated if she were returned to Georgia.

14. E.A. and U.A. v. Switzerland (CRC/C/85/D/56/2018), para. 6.5. ↩

With regard to the merits, the author claims that the State party has violated article 3 of the Convention as its authorities failed to take into account the best interests of the child by ensuring that her well-being would be adequately safeguarded after her removal. She considers that the Swiss authorities have interpreted the medical reports in an arbitrary manner, since allowing her to stay in Switzerland with her family would ease the psychological burden on her and her family. Furthermore, the Swiss authorities have ignored her father’s suicidal tendencies and her grandparents’ inability to assist her¹⁵ and have not given her the opportunity to express herself verbally to say how she lived with her grandmothers, what their relationship with her parents is like, why she does not wish to return to Georgia and the extent to which she is affected by her parents’ circumstances.

15. Her maternal grandfather died on 2 January 2021. ↩

With regard to article 19 (1) of the Convention, the author claims that the Georgian authorities are not able to provide her with the treatment she needs and that her parents will not be able to provide her with adequate assistance since they themselves have physical and mental illnesses.

With regard to the applicability of article 39 of the Convention, the author reiterates that she is a victim of parental neglect and of torture or any other form of cruel, inhuman or degrading treatment or punishment by the Georgian mafia. The State party is therefore under an obligation to take all appropriate measures to facilitate her physical and psychological recovery and social reintegration.

In the author’s view, the scope of article 37 (a) of the Convention is less restrictive than the approach taken by the European Court of Human Rights, which has never applied the test that it developed in the case of Paposhvili v. Belgium to cases involving children. Therefore, the Committee should not apply this restrictive test. Secondly, the author argues that, although Georgia has a State mental health programme that includes free-of-charge counselling and hospitalization services for all age groups, there are several shortcomings in the Kakheti region, where her grandmother’s village is located. These include a lack of psychiatric hospitals, limited outpatient services and insufficient funding.

Lastly, the author claims a new violation of articles 3 and 12 of the Convention on the grounds that her right to be heard has been violated. She states that the admissibility of this new claim should not be affected by the fact that she is raising it only at this stage of the proceedings rather than in her initial communication. The author argues that the failure to hold a separate hearing with her has meant that her traumatic experience in her country of origin was not taken into account and that this constitutes a violation of her rights under articles 3 and 12 of the Convention.¹⁶

16. E.A. and U.A. v. Switzerland, paras. 7.3 and 7.4. ↩

On 26 January 2022, the State Party submitted additional observations on the author’s allegation that her father had been raped in Georgia in 2017. It notes that, during the asylum proceedings, the allegations concerning the acts of violence to which the author’s father had allegedly been subjected had not been considered to be credible. Moreover, it is well known that medical treatment for the alleged psychological problems may be obtained in Georgia and is available for the whole population.¹⁷

17. Swiss Refugee Council, “Géorgie: accès à des soins médicaux. Recherche rapide de l’analyse-pays”, 28 August 2018, and Géorgie: accès à divers soins et traitements médicaux. Recherche rapide de l’analyse-pays de l’OSAR”, 30 June 2020. ↩

With regard to the author’s claim that she could not receive the medical treatment that she needs in Georgia and that her best interests would therefore be jeopardized because child psychiatry facilities are lacking in her country, the State party points out that psychiatric and psychological treatment for children are available at both inpatient and outpatient units in Tbilisi. As is widely known and reported, there is a government programme for the treatment of mental illness by psychiatrists, therapists and neurologists at outpatient facilities.

On 8 September 2022, the author submitted additional information on her parents’ state of health, which remains troubling. She then challenged the State party’s allegations about treatment options in Georgia by claiming that the State party has failed to address the availability and accessibility of the necessary medical treatment in her home region of Kakheti. In addition, the reply makes no mention of the practical implementation of the State mental health programme in Georgia, specifically in the Kakheti region.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.

The Committee notes the State party’s argument that, of the various provisions whose violation the author has alleged, only article 37 (a) of the Convention is directly applicable. In this regard, the Committee recalls that the Convention recognizes the interdependence and equal importance of all rights (civil, political, economic, social and cultural) that enable all children to develop their mental and physical abilities, personalities and talents to the fullest extent possible.¹⁸ It also recalls that the best interests of the child, as enshrined in article 3 of the Convention, is a threefold concept which is at the same time a substantive right, an interpretative legal principle and a rule of procedure.¹⁹ The Committee notes that, under article 5 (1) (a) of the Optional Protocol, individual communications may be submitted against a State party to the Convention by or on behalf of individuals or groups of individuals claiming to be victims of a violation by that State party of any of the rights set forth in the Convention. Accordingly, the Committee considers that there is nothing in article 5 (1) (a) of the Optional Protocol to suggest a limited approach to the rights whose violation may be invoked in the individual communications procedure. The Committee also recalls that, in the past, it has ruled on alleged violations of the articles invoked under the individual communications mechanism.²⁰

18. Committee on the Rights of the Child, general comment No. 15 (2013), para. 7. ↩
19. Committee on the Rights of the Child, general comment No. 14 (2013), para. 6. ↩
20. J.A.B. v. Spain (CRC/C/81/D/22/2017), para. 12.5; M.T. v. Spain (CRC/C/82/D/17/2017), para. 12.5; C.R. v. Paraguay (CRC/C/83/D/30/2017), para. 7.5; and E.A. and U.A. v. Switzerland, paras. 6.5 and 6.7. ↩

The Committee notes that the author alleged a violation of article 12 of the Convention only in her comments on the State party’s observations, and that it was therefore not part of the arguments concerning the admissibility and merits of the case to which the State party had been invited to respond. The author has not explained why she was unable to raise this claim at an earlier stage of the proceedings. Accordingly, the Committee finds this claim inadmissible under article 7 (f) of the Optional Protocol.²¹

21. S.B. et al. v. France (CRC/C/89/D/77/2019-CRC/C/89/D/79/2019-CRC/C/89/D/109/2019), para. 5.3. ↩

The Committee notes the State party’s argument that the author’s claims under articles 3, 19 (1), 24 (1) and 39 of the Convention are manifestly ill-founded or insufficiently substantiated. The Committee notes that the author has not explained in what way the State party failed to take measures to protect her from violence inflicted by her parents and has not raised the issue before the national courts. It also notes that the author has not explained in what way the State party failed to ensure her rehabilitation as a child victim of such violence or abuse. Accordingly, the Committee finds the author’s claims under articles 19 (1) and 39 of the Convention inadmissible under article 7 (e) and (f) of the Optional Protocol. However, the Committee considers that the communication raises substantive issues under articles 3, 24 and 37 (a) of the Convention concerning the possibility of her having access in Georgia to the treatment that she needs because of her state of health. Accordingly, it declares the communication admissible and proceeds to consider it on the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

The Committee notes the author’s claim that the decision of the State party’s authorities to return her to Georgia violated her rights under articles 3, 24 (1) and 37 (a) of the Convention because the Federal Administrative Court did not properly consider whether she would have access to adequate treatment for her mental illness in Georgia and because her removal would be carried out without the State party obtaining individual and sufficient guarantees of access to appropriate psychiatric treatment and child welfare services. The Committee notes that the State party contests the author’s allegations and maintains that its authorities have respected the rights of the child under the Convention.

The Committee recalls that States must not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 (1) and 37 of the Convention.²² The assessment of the risk of such serious violations should be conducted in an age- and gender-sensitive manner. The risk of such a serious violation should be assessed in accordance with the principle of precaution and, where reasonable doubts exist that the receiving State cannot protect the child against such risks, States parties should refrain from deporting the child.²³ The best interests of the child should be a primary consideration in decisions concerning the deportation of a child and such decisions should ensure – within a procedure with proper safeguards – that the child will be safe, will be provided with proper care and will enjoy his or her rights.²⁴

22. Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, para. 46. ↩
23. K.Y.M. v. Denmark (CRC/C/77/D/3/2016), para. 11.8; and X.C. et al. v. Denmark (CRC/C/85/D/31/2017), para. 8.3. ↩
24. K.S. and M.S. v. Switzerland (CRC/C/89/D/74/2019), para. 7.3. ↩

The Committee also recalls that it is for the national authorities to examine the facts and evidence and to interpret and enforce domestic law, unless their assessment has been clearly arbitrary or amounts to a denial of justice. It is therefore not for the Committee to assess the facts of the case and the evidence in place of the national authorities but to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that the best interests of the child were a primary consideration in that assessment.²⁵ The Committee also recalls that the principle of non-refoulement does not confer a right to remain in a country solely on the basis of a difference in health services that may exist between the State of origin and the State of asylum, or a right to continue medical treatment in the State of asylum, unless such treatment is essential for the life and proper development of the child and would not be available and accessible in the State of return.²⁶

25. C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.4; and E.A. and U.A. v. Switzerland, para. 7.2. ↩
26. G.R. et al. v. Switzerland (CRC/C/87/D/86/2019), para. 11.6. ↩

In the present case, the Committee notes that the Federal Administrative Court, in its judgment of 6 December 2019, took into consideration the most recent medical reports regarding the mental health of the author and her parents. It examined the accessibility and availability of psychiatric treatment for the author and her parents in their country of origin and the overall functioning of the health-care system in Georgia. In this connection, it noted that the author’s and her parents’ medical problems are not of such severity that it would constitute a medical emergency if they were returned to Georgia, where they would be able to receive the necessary treatment. The Court also considered the consequences of the author’s removal on her social and personal environment and her mental development and noted that, according to the medical reports, her psychological difficulties could be treated in a stable environment, which could be created by the parents. The Committee considers that, in view of the information in the case file, it cannot conclude that this evaluation was manifestly arbitrary or equivalent to a denial of justice, or that the author’s best interests as a child were not a primary consideration in this evaluation within the meaning of article 3 of the Convention.

With regard to the author’s claims under articles 24 (1) and 37 (a) of the Convention, the Committee also recalls that the principle of non-refoulement does not confer a right to remain in a country solely on the basis of a difference in health services that may exist between the State of origin and the State of asylum, or a right to continue medical treatment in the State of asylum, unless such treatment is essential for the life and proper development of the child and would not be available and accessible in the State of return.²⁷ In the present case, the Committee notes that, on the basis of the information in the case file, the psychiatric treatment required by the author is available and accessible in Georgia. Thus, the Committee concludes that the author’s removal to Georgia would not result in obstacles to gaining access to the treatment she needs and would not constitute a violation by the State party of her rights under articles 24 (1) and 37 (a) of the Convention. The Committee trusts that the State party will take adequate measures to facilitate the continuity of the family’s medical treatment during their transfer and upon their arrival in Georgia, in cooperation with the Georgian authorities.

27. G.R. et al. v. Switzerland, para. 11.6. ↩

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view that the facts before it do not disclose a violation of articles 3, 24 (1) or 37 (a) of the Convention.